Legal Question in Criminal Law in California

prop 36 probation detention and k-9 search

when a probationer gets stopped for a traffic violation and an

interior search has been conducted by police with nothing found on what grounds

can they call in a k-9 unit that was in the area but took over an hour

to show up to sniff the interior not exterior for alert. And how long can they detain the

probationer in the police car while waiting for unit to show on a mere traffic violation. Defendent at this time had completed his prop 36 sentence but his court date was a month away to get it signed off by judge. Police also know the defendent very well and his past drug related history.(brake light was not working)? Are there any cases relating to this to get it supressed. after k-9 search of interior 30.5 grams of meth was found.

Asked on 1/04/04, 6:53 am

3 Answers from Attorneys

Robert Miller Robert L. Miller & Associates, A Law Corporation

Re: prop 36 probation detention and k-9 search

Thank you for your inquiry. A suppression motion might certainly be appropriate in this case, but the law, and the cases interpreting the 4th amendment prohibition on unreasonable searches, looks at the probable cause for the search, not necessarily the time periods involved.

If you don't have an attorney, you certainly should get one to analyze the complicated legal issues involved and bring the appropriate researched and written motion before the court.

I hope this answer helps you, but if you have additional questions, want more information, or feel that you need legal representation, please feel free to email me directly at [email protected] It's my pleasure to assist you in any way that I can.

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Answered on 1/04/04, 7:13 am

Robert Nelson Rizio and Nelson

Re: prop 36 probation detention and k-9 search

You have several different defenses to this type of search. First off, your question did not advise if the probationer has a 4th amendment search and seizure waiver. If no, the answer is quite different than the one I am about to explain.

Since the case is a prop 36 case it does appear that a 4th amendment waiver was imposed at sentencing on the case. This means that the police can perform an unreasonable search. However, there are conditions as to how unreasonable the search can be. In your case, the search was clearly too long and would constitute grounds for a 1538.5 suppression motion.

The fact that the prop 36 candidate successfully completed but was not discharged only means that he can now be sentenced for this violation.

The next questions that must be answered from an attorneys prospective is what court is this in (LA, Orange, San Bernardino, Riverside) and what judge are we dealing with. Clearly a knowledge of the jurisdiction and judges that are willing to grant a suppression motion must be weighed. Remember judges must get re-elected and do not want to appear soft on crime so a judge in LA is better than a judge in Orange Courty.

To discuss this case in greater detail, feel free to contact either myself or my partner Greg Rizio (888/292-8888 or 909/781-6500 or 714/547-1234)

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Answered on 1/05/04, 1:20 pm
Steven Mandell Law Offices of Steven R. Mandell

Re: prop 36 probation detention and k-9 search

I completely disagree with Mr. Miller. It IS possible that the length of time that elapsed could have some major ramifications on the legality of the search. Your fact pattern is complex and needs further analysis. There are some factors that you don't relate which may be important to include in the analysis. Because a quick answer is not helpful, and can mislead, the situation is one which should be analyzed by a criminal lawyer. If you'd like to call me for a free consultation, please do. Steve Mandell 310 393 0639

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Answered on 1/04/04, 3:27 pm

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